EU Initiatives to Stem the Flow of Asylum Seekers and Migrants

Friday, October 9, 1998

Moderator: Kathleen Newland, Senior Associate and Co-Director, International Migration Policy Program, Carnegie Endowment for International Peace

Panelists: Bill Frelick, Senior Policy Analyst, US Committee for Refugees; Steve Edminster, Policy Analyst, US Committee for Refugees

On Friday, October 9, 1998, the International Migration Policy Program of the Carnegie Endowment for International Peace held a policy briefing at the Carnegie Endowment Conference Center. The panelists convened to assess UNHCR's involvement in dealing with Kurdish, ethnic Albanian, and Algerian asylum seekers in Europe and to discuss the recent move by the EU and its member states to more restrictive measures, including: regional solutions, safe havens, internal flight alternatives, safe third country designations, and the refusal of asylum to those persecuted by non-state agents. Basing observations on recent fieldwork experience, Bill Frelick in Kosovo and Steve Edminster in Germany and France, the panelists discussed whether the European Union's current refugee policies provide durable solutions and adequate protection to refugees fleeing persecution in the post cold war era.

Since the fall of the Berlin Wall and the establishment of democratic rule in Eastern Europe, Western Europe has been confronted by the pressures of a host of new refugee and migratory flows from Eastern Europe, the Balkans, the Middle East, Africa and Asia. Bill Frelick observed that Western European governments have perceived these new migratory movements to be a threat to both domestic security and plans for European Unity. As a result, the EU and its member states have taken recent initiatives to stem the flow of asylum seekers and migrants, interpreting their legal obligations to refugees much more narrowly. Frelick argued that restricting access to Western Europe has become a priority that is manifested in the current refugee policies of Western Europe. He pointed out that this restrictionist sentiment was evident in 1987 when the members of the Schengen Agreement required Italy to impose visa controls on Northern Africans as a condition for joining. It was apparent again in 1997 when the EU, concerned about the influx of Kurdish asylum seekers and the welcoming rhetoric of the Italians, developed a 47 point Action Plan to deflect Kurds and other potential asylees from entering southern Europe.

Frelick pointed out that the EU's Action Plan established a number of controls intended not only to limit the abuse of asylum procedures, but also to reduce refugee flows to the European Union. These controls included the implementation of sanctions against carriers bringing in undocumented passengers, increased training of airline staff to enable them to detect false documents, and mandatory fingerprinting for every third country national whose identity entered into question. It also promoted increased cooperation with non EU member-states in an effort to produce buffer zones between sending countries and the EU itself.

Frelick argued that the internal flight option, an alternative to resettlement that places refugees in "safe areas" within the region of origin, is an ominous new development that has been used as a pretext for denying asylum to many refugees. While point seven of the Action Plan mandates that the Council is to "consider the scope for developing a regional approach to protection in appropriate cases involving cooperation with non Member States and the possibility of identifying safe areas within the region of origin" Frelick argued that in practice the maintenance of safe areas has proven to be much more difficult then originally believed and the safety of refugees has often been disregarded. Although the concept evolved from Security Council Resolution 688 that established safe havens in Iraq, efforts to repeat the 1991 initiatives failed in Bosnia in 1993 due to the absence of any effective military protection. As a result, the people of Srebrenica were trapped in a killing field without a means of escape. Frelick pointed out that in 1996 when Iraqi forces over-ran Irbil inside the so-called "safe haven" for Kurds in northern Iraq, Turkey closed its borders and turned away those attempting to flee north. The refugees were left without either a safe haven or a country of first asylum. While the U.S. evacuated 6,500 people, the rest were left to face their fate.

Frelick pointed out that as UNHCR has expanded its mandate in the aftermath of Srebrenica, its position has been notably ambivalent. He maintained that this ambivalence is manifested in the contradictory reports UNHCR made in a public document presented to the 11^th UNHCR standing committee and in a confidential document presented to the K-4 committee of the European Commission shortly thereafter. Examining the internal flight options in Northern Iraq, the public UNHCR document ascertained that asylum within the region was not an option, not only because of the threat of persecution posed by the central government, but because of the existing rivalry among Kurdish factions, the double embargo on Northern Iraq, and the danger that those fleeing could be suspected of being agents or spies of Saddam. The document concluded that because asylum within the region was not feasible, outside asylum was needed. In contrast, UNHCR's confidential K-4 document instead reported "a gradual stabilisation in Northern Iraq" in which " an internal flight alternative [could] be applied in some cases." UNHCR based this observation on the cease-fire between the PUK and the KDP, which it maintained increased stability in the region. Frelick argued that many cease-fires have been established and suspended in the region over time. In light of this, he criticized UNHCR for considering the internal flight option even as it described the situation in Northern Iraq as "volatile" and capable of changing "at any time." He maintained the internal flight option should not be considered a viable solution in any region where the central government is an agent of persecution, there is a lack of state accountability, there is clear physical danger from fighting, or there is no rule of law and the situation is deemed to be volatile and unpredictable.

Frelick pointed out as well that the K-4 document places an emphasis on smooth integration of the displaced into another region of the same country as one of the basic factors to be considered in determining the feasibility of the internal flight option. In so doing, he argued that the document applies immigration criteria to circumstances that do not warrant it, obscuring critical distinctions that must be made between immigrants and refugees. He argued that the "integration" factor does not warrant first consideration when the safety of refugees is at stake. Also in the K-4 document, Frelick pointed out that UNHCR "welcomed the idea of establishing reception centers to better manage the flow of migrants and refugees to and through Turkey" yet acknowledged that Turkey cannot be considered a safe third country for non- European asylum seekers. Frelick pointed out that while Turkey has allowed a substantial number on non-European refugees to remain temporarily in its territory, the Turkish authorities have returned several asylum seekers, as well as refugees acknowledged by the UNHCR, to their home countries. Moreover, Turkey has been generating refugee flows of its own. Because Turkey cannot be considered a safe third country, Frelick argued that the UNHCR should find a truly safe area before it establishes a reception center.

Frelick observed that many of the devices that were set up to manage Kurdish flows are now being applied to refugees from Kosovo. In July 1998, Germany again proposed a regional approach for refugees in Northern Albania. The Europeans applied intense pressure to keep Kosovars in this brutally dangerous area where the UNHCR had temporarily moved its own people out. Later, Germany announced that Kosovars would not be given even temporary protection in Germany and began deporting them to Belgrade. However, these forced repatriations ended when the readmission agreement broke down in July in part because it required return flights to be on Yugoslav airlines, which were banned by German sanctions. Frelick argued that while President Slobodan Milosovic has put forth a cynical proposal to establish Serb-run "humanitarian reception centers" in Kosovo, these centers offer no possibility of safety. Frelick observed that the UNHCR has responded to these centers with ambivalence and has so far only set conditions for its assistance. As yet, he argued that there is neither talk of protection nor any indication that the United States will require that safety at these centers be monitored. These events, he noted, must be observed in the context of the overall deterioration of internal flight as a protective option. He argued that reference to safety is ever declining as the EU demonstrates an increased willingness to substitute humanitarian assistance for authentic protection.

Steve Edminster, also a policy analyst for the US committee for Refugees, argued that the EU's restrictive interpretation of "agents of persecution" is in effect "defining refugees out of existence." While the UNHCR has kept the need for protection as the defining factor of persecution, countries such as Germany, France, and Switzerland have recognized persecution only when states or state-like actors have perpetrated it. By narrowing the definition of persecution, these countries have omitted asylum seekers persecuted by non-governmental or unrecognized authorities such as the Taliban in Afghanistan, the Armed Islamic Group (GIA) in Algeria, and the Sudan People's Liberation Army (SPLA) in Sudan. Refugees fleeing from areas where there is no state, such as Somalia, have also been excluded. Countries aspiring to join the EU, such as Poland, Czechoslovakia, and Hungary, have been pressured to follow suit. Edminster asserted that the EU's narrow definition has placed human rights abuse second to the incidental identity of its perpetrators, an act that runs counter to the spirit and letter of the 1951 Convention. UNHCR has consistently taken the position that a need for protection may arise from a government's inability to prevent persecution.

Edminster pointed out that the European Union's restrictive position in refugee definitions has had a notable impact on refugee populations, particularly on Algerian refugees seeking asylum in Western Europe. Since the cancellation of the Algerian elections in 1992, the Islamic opposition has waged a war against the Algerian government and people. The Algerian government has not been able to stop the civilian massacres and there are some indications that government forces may have been implicated in some incidents. Civil servants, intellectuals, teachers, security forces, young men of draftable age, and those with lifestyles that run contrary to Islamic values are particularly at risk. As violence over the past two years has escalated in the hands of the Armed Islamic Group, approximately 5,000 Algerians have sought asylum in Western Europe, down from a peak of 14,000 in 1993.

While many Algerian asylum seekers applied for asylum in countries such as France, Switzerland, the UK, the Netherlands, and Switzerland, Edminster pointed out that the gap between the legal requirements on the question of agents of persecution and genuine human need is clearest in Germany where throughout the 1990s over half of the asylum applications (2,400) were filed. Of this caseload, less then one third of asylees feared persecution of the government, one third claimed fear of armed Islamic groups, and the remaining third were either unable to identify their persecutor or feared persecution by both the government and opposition groups. Edminster pointed out that Germany has routinely denied asylum to Algerian victims of non-state persecution. It has granted asylum to only nine of the 2,400 applications filed.

Similar to Germany, Edminster noted that Algerian victims of non-state persecution have almost universally been denied refugee status in France. France's consistent denial of almost all Algerian asylum applications during the 1990s has deterred many would-be asylees from applying. Instead, many have chosen to remain in France illegally for fear of being denied refugee status and deported. While Algerian victims of non-state persecution have a somewhat better chance of receiving protection in France then in Germany and France's policies appear to be improving, Edminster pointed out that France continues to forcibly repatriate Algerians from Marseilles at a rate of approximately ten to twenty per week.

Edminster agreed with UNHCR's view expressed in its March 1995 note on Agents of Persecution which stated that the "letter, object and purpose of the Convention would be contravened and the system of international protection of refugees would be rendered less effective if it were to be held that an asylum seeker should be denied protection unless a state could be accountable for the violation of his/her rights by a non-governmental actor." He noted, however, that despite UNHCR's efforts, the French and German policies toward refugees have remained largely unchanged and Algerian refugees are continually repatriated in spite of genuine need for international protection. As a future trend, he suggested that the UNHCR make efforts to grant mandate status to Algerian victims of non-state persecution and seek temporary resettlement for those at risk of refoulement.

Link to the U.S. Committee for Refugees web site

To contact the panelists:

Steve Edminster
Policy Analyst
US Committee for Refugees
1717 Massachusetts Avenue, NW Suite 701
Washington, DC 20036
Email: s@irsa-uscr.org
Tel: (202) 347-3507
Fax: (202) 347-3418

Bill Frelick
Senior Policy Analyst
US Committee for Refugees
1717 Massachusetts Avenue, NW Suite 701
Washington, DC 20036
Email: bfrelick@irsa-uscr.org
Tel: (202) 347-3507
Fax: (202) 347-3418